5 lands in the East and West Indies as also in Brazil and on the coasts of Asia, Africa, and America respectively as the above-mentioned Lords, the King and States respectively hold and possess, herein especially included the localities and places which the Portuguese have taken from the Lords States since the year 1641 and occupied; including also the localities and places which they, the Lords States, shall hereafter, without infraction of the present Treaty, come to conquer and possess. And the Directors of the Company, both of the 10 East and West Indies, of the United Provinces, as also the agents, officers high and low, soldiers and sailors. being in the actual service of one or the other of the said Companies or having been in their service, as also those who, [being] out of their respective services, still 15 remain or may hereafter be employed either in this country or in the district of the said two Companies, shall be and remain free and unmolested in all countries being under the dominion of the said Lord King in Europe, and shall be permitted to travel, trade and 20 frequent like all other inhabitants of the countries of the said Lords States. It has moreover been provided and stipulated that the Spaniards shall retain their navigation in such manner as they hold it at present in the East Indies, without being able to extend them- 25 selves further; as likewise the inhabitants of these Low Countries shall abstain from frequenting the places which the Castilians have in the East Indies." "VI. And as to the West Indies, the subjects and inhabitants of the kingdoms, provinces, and lands of the 30 said Lords the King and States respectively, shall forbear sailing to, and trading in any of the harbours, localities and places, forts, lodgments, or castles, and all others possessed by the one or the other Party, viz., the subjects of the said Lord the King shall not sail to, or 35 trade in those held by the said Lords the States, nor the subjects of the said Lords the States sail to or trade in those held by the said Lord the King. And among the places held by the said Lords the States, shall be comprehended the places in Brazil, which the 40 Portuguese have taken from the States, and occupied since the year 1641; as also all other places which they possess at present, so long as they shall continue in the hands of the said Portuguese, anything contained in the preceding Article notwithstanding." 45 In considering these Articles it must be borne in mind, as will be subsequently shown, that the Dutch were at the time in a position to make their own terms, and that the Spaniards were most anxious to agree to a Treaty at any price, 50 and had in fact given instructions to their Plenipotentiaries to that effect. It will be observed that Article V opens by recognizing the fact of previous navigation and British App. I, British App. I, p. 73. It will be well here to recall the fact that the 10 Charter of the West India Company expressly p. 44. recognizes the right of the Company to acquire territorial jurisdiction. Moreover, as regards Guiana, by the Orders and Regulations sanctioned by the States-General on the 14th May, 15 1632, and 15th July, ¡633, the coast eastward of the Orinoco was excluded from the district to which vessels of the United Provinces other than the Company's vessels might go, because the West India Company had exclusive rights there. 20 Again in the Orders and Regulations of the 6th January, 1635, and 16th October, 1637, the coast eastward of the Orinoco was excluded for the same reasons, and exactly the same privileges of the West India Company were recognized 25 in the Orders and Regulations issued by the States-General on the 10th August, 1648, immediately after the making of the Treaty, and still more specifically in the printed licenses regularly issued to traders in compliance with 30 these Regulations. Article V next contains the important provision that there shall be comprised under the Treaty all potentates, nations, and peoples with whom the said Lords States, or those of the East 35 and West India Companies in their name, were in friendship and alliance within the limits of their Charters. This provision was entirely in favour of the Dutch, and there is no similar corresponding provision in favour of Spain. The 40 reason is obvious when the facts are considered, and the position of the Dutch in Guiana is appreciated. As early as the 27th January, 1645, the Company, in their "Considerations," which were sent in to the States-General 45 with reference to the proposed peace, had stipulated for this provision. It can be established beyond all question that at the date of the Treaty the Dutch, to the knowledge of the Spaniards, were in friendship and had made alliances with 50 the native races of Guiana, especially with the Caribs who held the country on the east bank of British App. I, p. 75. British App. I, British Counter- British Counter- British App. I, p. 345. British App. VII, the Lower Orinoco. Sanson's Map of South America, published in 1650, and still more clearly his Map of Guiana, published in 1656, show the boundary between the Spanish provinces and the Carib territory, and place it above the Aguirre. British Atlas, p. 10. 5 The next sentence of Article V recognizes the right of possession of the King of Spain and the States to the territories and trade de facto held and possessed by them respectively at the date of the Treaty. This is followed by an 10 extension entirely in favour of the Dutch, that they shall hold, first, any places which the Portuguese had taken from them since the year 1641; secondly, any places which the Dutch might thereafter acquire without infraction of the 15 present Treaty. The suggestion that the rights reserved to and recognized in the Dutch by the latter provision were confined to a right to gain possessions beyond those which they already occupied only 20 from that part of South America which the Portuguese held, is contradicted by the terms of the Article itself. The express provision in the Article relating to territory occupied by the Portuguese only affords 25 a further argument to show the powerful position which the Dutch occupied. Portugal had revolted from Spain in 1640. In the absence of provision to the contrary Spain might have claimed the right to possess any territory won 30 back from Portugal. This concession to the Dutch was a recognition of their right to acquire, if they could, territory which Spain had at one time hoped to regain. But the words which immediately follow "including also the localities and places which the same Lords States shall hereafter without infraction of the present Treaty come to conquer and possess,” 35 clearly introduce and refer to a completely new were Spain, the Dutch, and Portugal, it is obvious that these words were intended to refer to the unconquered and unoccupied territories then in the possession of native tribes. 5 As regards the words "without infraction of the present Treaty" the only Articles of the Treaty which could be infringed in this connection are Articles V and VI. The only rights reserved to the King of Spain by those 10 Articles are, first, the right to remain in possession of and to enjoy such territories as Spain at the date of the Treaty held and possessed; secondly, the right to navigate to the East Indies so far as the Spaniards at the time held possession there, 15 the Dutch being prohibited from frequenting the places which the Castilians had in the East Indies; and lastly, the prohibition of navigation or trade to Spanish possessions in the West Indies without permission of the King of Spain. 20 The words which give the Dutch the right to conquer and possess new places "without infraction of the present Treaty" are wholly inconsistent with the view that the Treaty was limited by or made subject to Spanish rights to claim 25 as their property unoccupied territories. The Spanish claim to be regarded as the possessors of the whole of America by virtue of the Papal Bull of 1493, had been repudiated by the other European nations, and by none more 30 strongly than by the Dutch themselves, and at no stage of the negotiations was there the slightest recognition of the existence of such a Spanish title. It is perfectly easy to understand the true 35 meaning of the words above cited. Prior to the date of the Treaty the Dutch had repeatedly Case, App., p. 23. attacked the Spanish possessions in Guiana; Trinidad and Santo Thomé had been more than once raided by them. The power of the Dutch 40 was such that it was of the greatest importance for Spain to secure by Treaty freedom from molestation in respect of their possessions. The antecedent history, the words of the Treaty itself, and the subsequent dealings, all lead irresistibly to the 45 conclusion that the words "without infraction of the present Treaty," referred to the recognition. by the Dutch of the actual Spanish possessions contained in the Treaty itself, and constituted a promise by them to respect such Spanish posses50 sions, and that they had no reference to any assumed or paper title of Spain to territories of British Counter- Ante, p. 39. which they were not in possession. Of such a title no recognition is to be found in the Treaty. The succeeding paragraphs of Article V which recognized the rights of the West India Company and its servants to have freedom, traffic, 5 and resort, confirm the same view. Lastly, Article V closes by a clause preserving to the Spaniards, in the case of the East Indies, the rights of navigation which they had previously possessed but restricting them from any 10 extension of their rights. It is impossible to read this Article and to note the arrangement and object of its clauses without coming to the conclusion that it was inserted in order to give the Dutch the fullest 15 right of taking possession of any territories, including Guiana, not already in the actual occupation of Spain. The object of Article VI was entirely different from that of Article V. It related to trade. 20 The Dutch, in the course of the negotiations, had endeavoured to extort from Spain a privilege of free trade to Spanish possessions. It can be shown that the Dutch did not hope to succeed in obtaining this concession, and from the early part 25 of the negotiations were prepared to give way upon the point. They had at an early stage considered and prepared alternative Articles, the first of which provided for complete freedom of trade between Dutch and Spanish possessions in 30 all parts of the world; the second (which was that ultimately adopted) provided that each country should retain in its own hands the trade to its own possessions. The instructions to the Dutch Representatives were that, in the event of their 35 being unable to obtain reciprocal privileges of free, open, and unlimited commerce to the places possessed by Spain and Holland respectively, the alternative Article should be submitted for adoption. 40 The result of the negotiation is embodied in Article VI, which has the effect of restraining the Dutch and the Spanish respectively from sailing to or trading in any of the harbours or places actually possessed by the other; and here, 45 in favour of the Dutch, were introduced the places in Brazil which the Portuguese had taken from them. This Article is concerned with trade and with trade only. The construction which, as has already been 50 demonstrated, must be put upon Articles V and |